John Furtado v. Harold Bishop, John Furtado v. Harold Bishop, 604 F.2d 80, 1st Cir. (1979)

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604 F.2d 80

4 Fed. R. Evid. Serv. 929

John FURTADO et al., Plaintiffs-Appellees,

v.

Harold BISHOP et al., Defendants-Appellants.John FURTADO et al., Plaintiffs-Appellants,

v.

Harold BISHOP et al., Defendants-Appellees.

Nos. 78-1482, 78-1483.

United States Court of Appeals,First Circuit.

Argued March 2, 1979.

Decided July 26, 1979.

Lee Carl Bromberg, Sp. Asst. Atty. Gen., Dept. of Correction, Boston,

Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief for Harold Bishop, et al.

Max D. Stern, Boston, Mass., with whom Jonathan Shapiro, Stern &

Shapiro and Michael Avery, Boston, Mass., were on brief for John

Furtado, et al.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, PETTINE,

District Judge.**

BOWNES, Circuit Judge.

1 This case stems from two separate but related incidents at the Massachusetts

Correctional Institution (MCI) at Walpole on March 21, 1970. Prison officials

observed prisoners John Furtado and Gerald Sousa returning to their respective

cells after attending a banquet at the auditorium sponsored by inmates involved

in a prison drug program. Sousa had consumed some home brew and his gaitand general appearance made it obvious that he was less than sober. Furtado

later testified that he had nothing to drink at the banquet. Both men went into

their cells shortly before ten o'clock and presumably fell asleep. Based on the



observations made and because it was known that both had been at the banquet,

the prison officials, after going through the appropriate chain of command,

decided to move Sousa and Furtado out of their cells and search for contraband.

As the guards attempted to usher him to a segregated area in Cell Block 9, a

melee erupted between Sousa and the guards. There was further turmoil when a

second group of guards attempted to move Furtado out of his cell. Both men

claimed to have been beaten by the guards. Furtado was injured more seriouslythan Sousa; he bled profusely, was obviously in pain and an X-ray showed that

his jaw was slightly fractured. He was taken to the prison hospital.

2 While Furtado was in the prison hospital, Sousa wrote a series of letters

complaining that he and Furtado had been brutally and unjustly beaten and

seeking redress. On March 23, he wrote to the Norfolk County District

Attorney's office. By the time his letter was delivered on March 26, State Police

Officer Reilly had already been called in by Walpole Superintendent Moore toinvestigate the incidents. On March 24, Sousa wrote to Dr. Miriam Van Waters,

a former Superintendent of MCI Framingham whom he knew, but Deputy

Superintendent Butterworth returned the letter to Sousa and asked him to delete

the name of an officer he accused of directing the beatings. Sousa wrote Dr.

Van Waters again on March 27 and also wrote Chief Judge Charles Wyzanski

of the United States District Court.

3 Furtado and Sousa had, themselves, been the subject of several disciplinaryreports written by prison officers involved in the incidents. Deputy

Superintendent Butterworth, who had commenced his own investigation of the

incident on March 23 and had read the reports, recommended to Superintendent

Moore that Furtado and Sousa be transferred to departmental segregation units

(DSU). In April, upon Moore's recommendation, Commissioner of Correction

Fitzpatrick transferred Furtado to DSU Walpole and Sousa to DSU

Bridgewater, where they spent approximately six months.1

4 In December, 1970, Furtado and Sousa filed a lawsuit under 42 U.S.C. § 1983

against various guards and prison officials and also moved for a preliminary

injunction asking the district court to enjoin defendants from intercepting and

reading any correspondence from plaintiffs to and from their attorneys, to order

defendants to allow plaintiffs or their representatives to interview plaintiffs and

potential witnesses in privacy and to permit nonlawyers to conduct the

interviews, to enjoin defendants from interfering in any way with the conduct of

the lawsuit, and to restore plaintiffs to the general prison population. After ahearing, the district court granted, with some modification, the relief requested

except for transfer out of segregation to the general prison population.



5 After a long unexplained delay, the case was assigned to another judge for trial

in November of 1977. Prior to the start of the scheduled jury trial in March of

1978, plaintiffs filed a second amended complaint, which was assented to by

defendants. The complaint alleged unjustified assaults and beatings and use of

excessive force against both plaintiffs. It asserts that Sousa was held under

conditions of solitary confinement at DSU Bridgewater for six months without

cause, with no hearing or notice of charges, that the defendants knew or should

have known that the reports made against Sousa were false, and that he was

transferred to DSU Bridgewater "at least in part" because he attempted to obtain

legal redress for the beating administered on March 21, 1970, "by attempting to

write to the United States District Court and by attempting to mail letters

seeking legal assistance, which attempts were frustrated by defendant

Butterworth." Essentially the same allegations were made as to Furtado's

confinement in the segregation unit at Walpole. Damages were sought for the

beatings, for the confinement in segregation, for the alleged deprivation of due process and deprivation of their right to communicate with the outside world

and the courts.

6 Eleven special interrogatories were submitted to the jury which can be

summarized as follows: (1) was improper physical force applied on the night of

March 21, 1970; (2) which of the defendants participated in the application of

such force, either directly or by failing to stop it (the defendants were listed

with a space for a yes or no answer opposite each name); (3) the amount of compensatory damages for the use of improper physical force; (4) the amount

of punitive damages; (5) did any defendants make an intentionally false report

to cover up the events of the night of March 21, 1970 (with a list of defendants'

names for checking if applicable); (6) did any of the defendants make an

intentionally false report or recommendation with the purpose or expectation

that it would lead to segregated confinement (with a list of defendants' names

for checking if applicable); (7) compensatory damages for segregation; (8)

punitive damages for segregation; (9) did defendant Butterworth suppress thesecond letter to Dr. Van Waters; (10) did defendant Butterworth suppress a

letter to Judge Wyzanski; and (11) did defendant Butterworth recommend

segregation for Sousa because of his writing to Dr. Van Waters and/or Judge

Wyzanski with an additional question as to the amount of compensatory and

punitive damages if applicable.

7 In response to the interrogatories, the jury found that three types of wrongdoing

had occurred: (1) that certain defendants used or countenanced the use of excessive force against Furtado and Sousa; (2) that guards Scholes and Saulnier

and Deputy Superintendent Butterworth made false reports or recommendations

with the purpose or expectation they would lead to segregated confinement for



THE RECOVERY OF DAMAGES FOR SEGREGATED CONFINEMENT

Furtado and Sousa; and (3) that Butterworth suppressed the second letter to Dr.

Van Waters and the letter to Judge Wyzanski and recommended segregation for

Sousa because of his letter writing. The jury awarded Furtado $8,000 and Sousa

$4,500 in compensatory damages for the use of excessive force against them,

Furtado $1,000 and Sousa $9,000 in compensatory damages for segregated

confinement, and Sousa $3,000 in compensatory damages and $3,000 in

punitive damages for Butterworth's mail suppression and recommendation of segregation. After deleting $1,000 in compensatory damages against

Butterworth as redundant, the district court entered a judgment of $56,444.45,

which included prejudgment interest, costs, and attorney's fees.

8 The defendants have appealed the entire judgment, and the plaintiffs have

cross-appealed from the portion of the judgment concerning attorney's fees. The

issues on appeal cluster around four aspects of the case: (1) the recovery of

damages for the plaintiffs' segregated confinement; (2) evidentiary rulings; (3)the judge's instructions to the jury; and (4) prejudgment interest and attorney's

fees. We address these issues in order.

9

10 The defendants have concentrated much of their effort on attacking the award

of damages against Saulnier, Scholes, and Butterworth for making false reports

or recommendations to bring about the plaintiffs' transfers to segregatedconfinement. Saulnier wrote a report in which he accused Sousa of being "very

high on drugs or booze," refusing to go to Block 9, and fighting, kicking, and

taking a swing at an officer; he recommended the "(m)aximum penalty this

man can get." Scholes' report similarly accused Furtado of refusing to obey

orders to move and of hitting, kicking, and biting officers. As noted above,

Butterworth conducted an investigation and ultimately recommended the

transfers.

11 The plaintiffs' theory, accepted by the jury, was that the guards had attacked

them and that certain of the defendants had made false reports and

recommendations in order to "cover up" the assaults and beatings with the

purpose or expectation that such reports would result in segregated

confinement. According to this theory, defendants were liable for plaintiffs'

confinement in segregation because it constituted arbitrary and capricious or

grossly disproportionate punishment for drinking and refusing to obey orders,2

in violation of the eighth amendment and the substantive due process guaranteeof the fourteenth amendment and because it was imposed in part to frustrate

plaintiffs' right of access to the courts, in violation of the first amendment and

the due process clause of the fourteenth amendment.



12 As we understand defendants' position, they contest plaintiffs' recovery of

damages for segregated confinement on four grounds. First, they contend, more

emphatically in oral argument than in their briefs, that they had no notice that

the plaintiffs sought damages for conditions in segregation on the theory that

the transfers to segregation for improper motives violated the eighth and

fourteenth amendments. After carefully reviewing plaintiffs' second amended

complaint, we find no merit in this position. The complaint sufficiently pled the plaintiffs' theory of recovery for segregation,3 and, in the detailed description of

the privileges lost in segregation and of the vile conditions endured by Sousa at

DSU Bridgewater, there was ample warning that the plaintiffs were seeking

damages for the conditions of segregated confinement.4 Defendants also had

the benefit of plaintiffs' proposed jury instructions, which were filed several

days before trial and in which plaintiffs claimed a right not to be arbitrarily

singled out for punitive and degrading treatment and sought damages for time

spent in segregation.

13 Second, and more fundamentally, defendants contend that plaintiffs' theory of

recovery under the eighth and fourteenth amendments was erroneous as a

matter of law. They reason that, in the wake of the Supreme Court decisions in

Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), and

Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976), and

our own post-Meachum decisions in Daigle v. Hall, 564 F.2d 884 (1st Cir.

1977); Four Certain Unnamed Inmates v. Hall, 550 F.2d 1291 (1st Cir. 1977),and Lombardo v. Meachum, 548 F.2d 13 (1st Cir. 1977), the plaintiffs' transfers

were not actionable.

14 The initial difficulty with this argument is that, as we read the record, it was not

raised below.5 We will not ordinarily consider on appeal grounds for reversal

that were not urged upon or considered by the district court. E. g., Johnston v.

Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir. 1979); Dobb v. Baker, 505 F.2d

1041, 1044 (1st Cir. 1974). Although we have acknowledged our power tonotice plain error in order to avert a clear miscarriage of justice, Morris v.

Travisono, 528 F.2d 856, 859 (1st Cir. 1976), we only exercise that power if the

new ground is "so compelling as virtually to insure appellant's success." Dobb

v. Baker, supra, at 1044. This is not the case here.

15 The Supreme Court's prison transfer decisions did not clearly foreclose

plaintiffs' theory of recovery of damages for their segregated confinement. In

Meachum v. Fano, supra, 427 U.S. at 216, 96 S.Ct. 2532, and Montanye v.Haymes, supra, 427 U.S. at 242, 96 S.Ct. 2543, the Court held that the due

process clause of the fourteenth amendment does not require a hearing before a

prisoner is transferred from one state prison to another having harsher



conditions, unless a state law or practice creates a liberty interest in continued

confinement at the first prison by conditioning transfers on misconduct or other

events. In Meachum, the Supreme Court reversed a decision of this court, Fano

v. Meachum, 520 F.2d 374 (1st Cir. 1975), holding that transfers from MCI

Norfolk to MCI Walpole and Bridgewater implicated a liberty interest and

required certain due process protections. Interpreting the Supreme Court's

decisions, we held in Daigle v. Hall, supra, 564 F.2d at 885-886, and Four Certain Unnamed Inmates v. Hall, supra, 550 F.2d at 1292, that a prisoner's

transfer to DSU Walpole did not implicate any liberty interest or violate

procedural due process of law. See also Sisbarro v. Warden, Massachusetts

State Penitentiary, 592 F.2d 1, 2-4 (1st Cir. 1979) (interstate transfers);

Lombardo v. Meachum, supra, 548 F.2d at 13-15 (transfer from MCI Norfolk

to MCI Walpole). All of these cases addressed an issue of procedural due

process: what, if any, procedural protections must accompany a transfer.

16 Nothing in these decision expressly ruled out a challenge to a transfer to

segregation on the ground that it violated constitutional rights other than the

right to procedural due process of law.6 In fact, in Montanye v. Haymes, supra,

427 U.S. at 242, 96 S.Ct. 2543, the Supreme Court indicated that the conditions

or degree of a prisoner's confinement could be "otherwise violative of the

Constitution," and the dissenters understood the Court to agree that Montanye

would have a cause of action to the extent he claimed his transfer was in

retribution for the exercise of his first amendment rights. Id. at 244 and n.*,7 96S.Ct. 2543. Defendants themselves do not seriously dispute that plaintiff's

transfers to segregation were actionable if they violated plaintiffs' right of

access to the courts, one theory of recovery advanced.

17 By the same token, plaintiffs' theory that recovery for segregated confinement

could also be based upon the eighth and fourteenth amendments is not

commonplace and widely accepted. Although it is established that conditions in

segregation can be so barbaric as to constitute cruel and unusual punishment, E.g., Hutto v. Finney, 437 U.S. 678, 685, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978),

plaintiffs freely admit that they did not pursue this type of eighth amendment

claim. Rather, they contended that the punishment exacted was cruel and

unusual because it was arbitrarily imposed to cover up brutality and was

grossly disproportionate to whatever offenses they had committed. It is true that

the Supreme Court has stated many times that a grossly disproportionate

penalty can offend the eighth amendment, E. g., id. at 685, 98 S.Ct. 2565;

Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910), but the Court does not appear to have applied this concept to prison disciplinary

measures such as segregation.8 Nevertheless, a few lower courts have done so.

Chapman v. Kleindienst, 507 F.2d 1246, 1252 (7th Cir. 1974); Wright v.



McMann, 460 F.2d 126, 132-33 (2d Cir.), Cert. denied, 409 U.S. 885, 93 S.Ct.

115, 34 L.Ed.2d 141 (1972); Hardwick v. Ault, 447 F.Supp. 116, 125-27

(M.D.Ga.1978). See Bono v. Saxbe, 450 F.Supp. 934, 944 (E.D.Ill.1978);

Fitzgerald v. Procunier, 393 F.Supp. 335, 342 (N.D.Cal.1975). Similarly, some

courts have indicated that segregated confinement amounts to cruel and unusual

punishment or a violation of substantive due process if it is imposed arbitrarily

and without basis. Wilwording v. Swenson, 502 F.2d 844, 851 (8th Cir. 1974),Cert. denied, 420 U.S. 912, 95 S.Ct. 835, 42 L.Ed.2d 843 (1975); Black v.

Warden, United States Penitentiary, 467 F.2d 202, 203-04 (10th Cir. 1972);

United States ex rel. Bennett v. Prasse, 408 F.Supp. 988, 999 (E.D.Pa.1976).

We, ourselves, have recognized that punishment of prisoners may not be

"extremely disproportionate, arbitrary or unnecessary." O'Brien v. Moriarty,

489 F.2d 941, 944 (1st Cir. 1974). See Feeley v. Sampson, 570 F.2d 364, 371

(1st Cir. 1978); Nadeau v. Helgemoe, 561 F.2d 411, 419 (1st Cir. 1977). Given

the state of the law in this area, we certainly cannot say that plaintiffs' theory of recovery for segregated confinement was plainly erroneous.

18 Defendants' third argument, which was made in various forms below,9 is that

there was insufficient evidence to impose liability on Butterworth, Scholes, and

Saulnier for transfers of plaintiffs to segregation. Defendants reason that,

because the decisions to transfer were ultimately made by Commissioner of

Correction Fitzpatrick,10 who was not a defendant, on the recommendation of

Superintendent Moore, who was dropped as a defendant, their false reports andrecommendations were not proved to have caused the transfers to segregation.

In a variation on this theme, defendants contend that Moore and Fitzpatrick

may have had their own valid reasons for effecting the transfers, and that there

was an "unrebutted, rational and nondiscriminatory basis" for the transfers,

Laaman v. Perrin, 435 F.Supp. 319, 328 (D.N.H.1977), in Sousa's drinking and

both plaintiffs' refusals to obey orders.

19 We think there was sufficient evidence to impose liability on Butterworth,Scholes, and Saulnier for the transfers. Section 1983 is to be "read against the

background of tort liability that makes a man responsible for the natural

consequences of his actions." Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473,

484, 5 L.Ed. 2d 492 (1961), Overruled on other grounds, Monell v. Department

of Social Services of the City of New York, 436 U.S. 658, 663, 98 S.Ct. 2018,

56 L.Ed.2d 611 (1978). When a person's conduct is a "substantial factor and a

material element" in bringing about a foreseeable injury, he can be held liable

for that injury. Hilliard v. Williams, 516 F.2d 1344, 1351 (6th Cir. 1975),Vacated on other grounds, 424 U.S. 961, 96 S.Ct. 1453, 47 L.Ed.2d 729 (1976).

See W. Prosser, Law of Torts, § 42, at 244-48 (4th ed. 1971). Here there was

evidence from which the jury could infer that defendants made false reports and



EVIDENTIARY RULINGS

recommendations with the purpose or expectation that they would lead to

segregated confinement, and that their actions caused Moore to advocate and

Fitzpatrick to order the transfers.11 This satisfied plaintiffs' burden of proving

that it was more likely than not that defendants foresaw and helped bring about

the transfers to segregation. Hilliard v. Williams, supra, at 1351. See Spears v.

Conlisk, 440 F.Supp. 490, 498 (N.D.Ill.1977).

20 Fourth, and last, defendants assert that, even if they could be held responsible

for the transfers, damages were not properly imposed on them for the

conditions of confinement in segregation units. This argument stems from two

premises: that the only right arguably violated by the transfers to segregation

was the right of access to the courts, and that only nominal damages were due

for any violation of this right because plaintiffs were able to secure counsel, file

this lawsuit, and prevail. This argument, too, was not voiced below. We see no

plain error in the award of damages for segregation. For the reasons statedabove we are unconvinced that the only right defendants violated was plaintiffs'

right of access to the courts. In any event, we think that damages for segregated

confinement were appropriate to the extent that defendants attempted to punish

or deter the exercise of that right. Sostre v. McGinnis, 442 F.2d 178, 189, 205

and n. 52 (2d Cir. 1971), Cert. denied sub nom. Oswald v. Sostre, 405 U.S. 978,

92 S.Ct. 1190, 31 L.Ed.2d 254 (1972). See Laaman v. Perrin, supra, 435

F.Supp. at 326 and cases cited therein. The measure of such damages is clearly

the difference between the harsher and, as to Sousa, deplorable conditionssuffered in segregation and the conditions that prevailed in the general prison

population. We find nothing shocking or even unreasonable as to the damages

awarded for the confinement in segregation, $1,000 to Furtado and $9,000 to

Sousa.

21 Having concluded our discussion of this phase of the case, we turn our attention

to the evidentiary rulings attacked by defendants.

22 Defendants first challenge as unfairly prejudicial the introduction of evidence

concerning the conditions in segregated confinement, particularly as to Sousa's

concededly "grotesque, horrifying and dramatic" testimony that he was locked

up at DSU Bridgewater for virtually twenty-four hours a day for six months, in

a cell that was located under a ward for violent, uncontrollable mental patients,

that were saturated with excrement and urine, and that had no plumbing andalmost no furnishings. This evidence was highly relevant to the theory of

recovery already discussed and central to plaintiffs' proof of damages. The

probative value of this evidence was substantially outweighed by the danger of



statement not specifically covered by any of the foregoing exceptions but having

equivalent circumstantial guarantees of trustworthiness, if the court determines that

(A) the statement is offered as evidence of a material fact; (B) the statement is more

probative on the point for which it is offered than any other evidence which the

proponent can procure through reasonable efforts; and (C) the general purpose of

these rules and the interests of justice will best be served by admission of thestatement into evidence.

However, a statement may not be admitted under this exception unless the proponent

of it makes known to the adverse party sufficiently in advance of the trial or hearing

to provide the adverse party with a fair opportunity to prepare to meet it, his

intention to offer the statement and the particulars of it, including the name andaddress of the declarant.

unfair prejudice in admitting it. Fed.R.Evid. 403.

23 More persuasive is defendants' claim that the trial court erred in admitting an

affidavit by Claude Cross, an attorney who was dead at the time of trial. In this

affidavit, Cross stated that he went to see Sousa at Walpole on April 1, 1970, at

the request of Dr. Miriam Van Waters, who had received a phone call on

Sousa's behalf. Cross further stated that Sousa complained to him that letters hehad written to Dr. Van Waters and Judge Wyzanski had been suppressed. Cross

recalled asking Deputy Superintendent Butterworth about this and noted his

response: "Butterworth replied that he had withheld one or two letters to Dr.

Van Waters but had sent along the last one. He also said that he had refused to

allow a petition to Judge Wyzanski to be mailed because allegations in it

reflected badly upon the institution."

24 The Cross affidavit was very damaging to Butterworth's credibility. Butterworthhad testified that he did not recall intercepting any of Sousa's letters, although

he had then been forced to admit, when shown an affidavit he, himself, had

executed in 1970, that he had returned the first letter to Van Waters and had

asked Sousa to delete the name of an officer he implicated in brutality.

25 The Cross affidavit was not offered, however, merely to impeach Butterworth.

Instead, it was offered under Rule 804(b)(5) of the Federal Rules of Evidence,

as substantive evidence that Butterworth suppressed Sousa's mail. Rule 804(b)

(5) creates an exception to the hearsay rule for an unavailable declarant's

26

27 The rule conditions the admissibility of the statement upon pretrial notice.

28

29 Defendants contend that the Cross affidavit was inadmissible under Rule



804(b) (5) because it was not trustworthy and because plaintiffs did not give

the requisite pretrial notice that it would be offered. We are troubled by the trial

judge's treatment of both of these issues.

30 In determining that the affidavit was sufficiently trustworthy, the trial judge

relied heavily upon the fact that he knew Cross well, as a very honorable man.

This approach was of questionable propriety, because the trial judge was not awitness and his knowledge of Cross was not subject to judicial notice. See

Fed.R.Evid. 201; 603; 605. As to the lack of pretrial notice, the trial judge

made no findings and demonstrated limited concern. He offered defense

counsel a week's continuance to meet the Cross affidavit, but undercut the offer

with a demand that counsel explain on the spot what he would be able to do

with the time ("You can't dig up Mr. Cross").

31 Despite our reservations about the trial judge's handling of the Cross affidavit,we uphold its introduction under Rule 804(b)(5). There were many indicia of

the affidavit's trustworthiness. Defense counsel himself conceded that its author

was an "eminent attorney." As an attorney, Cross could not have failed to

appreciate the significance of the oath he took in executing the affidavit and, as

such, was not a person likely to make a cavalier accusation against a prison

official. As he explained in his affidavit, he had successfully defended Dr. Van

Waters before a special commission that investigated her removal as the

superintendent of MCI Framingham. Although he went to see Sousa at the behest of Dr. Van Waters, Cross was basically a disinterested party; he was not

Sousa's attorney and apparently had no connection with his lawsuit beyond

submitting an affidavit.12 Apart from these indications that the affiant was

trustworthy, there were factors supporting the reliability of his statement that

Butterworth admitted intercepting Sousa's mail to Dr. Van Waters and Judge

Wyzanski. Cross, of course, had personal knowledge of Butterworth's

admissions. As the trial judge noted in admitting the affidavit, Butterworth's

own memory was poor, and his eventual admission on the witness stand that he brought one letter to Dr. Van Waters back to Sousa lent impressive support to

the reliability of the Cross affidavit. All of this is not to say that Cross'

recollection could not have been questioned, especially on the ground that his

affidavit was executed nearly eight and one-half months after his conversation

with Butterworth. Nevertheless, we think that there was a sufficient threshold

showing of trustworthiness and that, beyond this, it was for the jury to decide

the weight to be given the affidavit. The defendants cite no cases that persuade

us otherwise, and comparison of this case to cases from other circuits onlyconfirms us in our view. E. g., Copperweld Steel Co. v. Demag-Mannesmann-

Bohler, 578 F.2d 953, 964 (3d Cir. 1978); United States v. West, 574 F.2d

1131, 1134-36 (4th Cir. 1978); United States v. Medico, 557 F.2d 309, 315-17



(2d Cir.), Cert. denied, 434 U.S. 986, 98 S.Ct. 614, 54 L.Ed.2d 480 (1977);

United States v. Ward, 552 F.2d 1080, 1082 (5th Cir.), Cert. denied, 434 U.S.

850, 98 S.Ct. 161, 54 L.Ed.2d 119 (1977); United States v. Carlson, 547 F.2d

1346, 1354 (8th Cir. 1976), Cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53

L.Ed.2d 224 (1977) (trustworthiness upheld). Compare United States v. Bailey,

581 F.2d 341, 348-50 (3d Cir. 1978); United States v. Gonzalez, 559 F.2d 1271,

1273-74 (5th Cir. 1977) (trustworthiness found lacking).

32 The failure of the plaintiffs to give pretrial notice that they would use the Cross

affidavit also poses a serious problem. Just how strictly Rule 804(b) (5)'s

pretrial notice provision should be enforced has been a matter of debate. After

reviewing the legislative history of Rule 804(b)(5) and Rule 803(24), the

identical provision for statements of available declarants, the Second Circuit

concluded in two cases that Congress intended the pretrial notice provision to

be rigidly enforced and that evidence proffered without pretrial notice must beexcluded. United States v. Ruffin, 575 F.2d 346, 357-58 (2d Cir. 1978); United

States v. Oates, 560 F.2d 45, 72-73 n.30 (2d Cir. 1977).13 A leading

commentator has criticized this view as unnecessarily restrictive, admonishing

that Rule 102 of the Federal Rules of Evidence requires that the Rules "be

interpreted with a sense of trial realities, not like a bond indenture." 4

Weinstein's Evidence P 803(24)(01), at 803-243 n.4f (4th ed. Supp.1978).14

Most courts have interpreted the pretrial notice requirement somewhat flexibly,

in light of its express policy of providing a party with a fair opportunity to meetthe proffered evidence. Thus, the failure to give pretrial notice has been

excused if the proffering party was not at fault (because he could not have

anticipated the need to use the evidence) and if the adverse party was deemed

to have had sufficient opportunity to prepare for and contest the use of the

evidence (for example, because he was offered a continuance, did not request a

continuance, or had the statement in advance). E. g., United States v. Bailey,

supra, 581 F.2d at 348; United States v. Lyon, 567 F.2d 777, 784 (8th Cir.),

Cert. denied, 435 U.S. 918, 98 S.Ct. 1476, 55 L.Ed.2d 510 (1977); UnitedStates v. Medico, supra, 557 F.2d at 316 n.7; United States v. Carlson, supra,

547 F.2d at 1355; United States v. Leslie, 542 F.2d 285, 291 (5th Cir. 1976);

United States v. Iaconetti, 540 F.2d 574, 578 (2d Cir. 1976), Cert. denied, 429

U.S. 1041, 97 S.Ct. 739, 50 L.Ed.2d 752 (1977).15

33 Even if we reject the Second Circuit's rigid interpretation of the pretrial notice

requirement in favor of the prevailing flexible approach, the fly in the ointment

in this case is that plaintiffs have never explained their failure to give pretrialnotice. They cannot be presumed blameless. Nevertheless, on balance, we are

persuaded that the lack of pretrial notice was not fatal.



34 Plaintiffs argue with some justification that defendants were not prejudiced by

the failure to give notice because they were not, as they claim, surprised by the

Cross affidavit. As plaintiffs point out, defendants had the Cross affidavit in

their possession for seven and one-half years. It had accompanied plaintiffs'

1970 motion for injunctive relief, and Butterworth had specifically responded

to it in his own affidavit (the one in which he admitted returning one of the

letters to Van Waters). Furthermore, the second amended complaint alerted

defendants that plaintiffs would make a major issue of Butterworth's

suppression of Sousa's mail. But, most important, defense counsel's own

comments indicated that he actually anticipated that evidence from Cross16

would be offered; counsel said, "In inquiring into his background, I found he

was a very eminent attorney."

35 We, therefore, find enough in the record to support an inference that counsel

had prepared to meet the evidence in question, at least to the extent of

investigating Cross' background, if not also to the point of reviewing prison

mail records and contacting Judge Wyzanski's office.17 Whatever deficiencies

there were in defense counsel's preparation, such as a failure to review

Butterworth's testimony about the affidavit with him in advance, we do not

think they were fairly traceable to the failure to give pretrial notice. Finally,

even if the court's offer of a continuance was somewhat abrupt, defense counsel

showed little, if any, interest in that option, responding to the court's query that

"it would make no difference" if he were given a continuance.

36 In these circumstances, we are not inclined to read the notice provision of Rule

804(b)(5) to have mandated the exclusion of the Cross affidavit. If, in

upholding the affidavit's admission, we are reading the rule somewhat more

liberally than other courts, we do so because, unlike the vast majority of cases

interpreting the rule, this is a civil case.18 Where there is no constitutional right

of confrontation implicated by the rule, we think slightly freer play can be

given to the discretion of the trial judge in admitting evidence under it. See

United States v. Bailey, supra, 581 F.2d at 350-51; United States v. Medico,

supra, 557 F.2d at 314 n.4. Nevertheless, we warn parties that they fail to give

pretrial notice under the rule at their peril, and we expect trial judges to

consider carefully statements offered under residual exceptions to the hearsay

rule.

37 The remaining evidentiary issues can be handled with greater dispatch. Thenext contested ruling is the trial judge's exclusion of several of Furtado's prior

convictions (for escape, assault and battery on a guard, contributing to the

delinquency of a minor, carnal abuse of a child, and larceny of a motor vehicle)



For the purpose of attacking the credibility of a witness, evidence that he has been

convicted of a crime shall be admitted if elicited from him or established by publicrecord during cross-examination but only if the crime (1) was punishable by death or

imprisonment in excess of one year under the law under which he was convicted,

and the court determines that the probative value of admitting this evidence

outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false

statement, regardless of the punishment.

and his exclusion of the fact that the prior assault and battery conviction of

plaintiff's witness Allen, who testified that Sousa had been beaten, was for

assault and battery on a prison guard. These convictions were offered under

Rule 609(a) of the Federal Rules of Evidence, which provides:

38

39 Defendants contend that the trial judge had no discretion under Rule 609(a)(1)

to exclude any of the prior convictions of plaintiff Furtado and witness Allen,since they were not defendants in the case. Plaintiffs' rejoinder is that the trial

judge retained discretion under Rule 403 to exclude evidence on the ground that

"its probative value is substantially outweighed by the danger of unfair

prejudice." Although defendants may have a legitimate argument, we need not

resolve the issue.

40 We think that whatever error there was in excluding some of Furtado's

convictions and the precise nature of Allen's conviction for assault and batterywas harmless, or, in the words of Rule 103(a) of the Federal Rules of Evidence,

did not "affect a substantial right" of defendants.19 The trial judge did admit five

of Furtado's prior convictions (two for assault and battery, two for assault and

battery with a dangerous weapon, and one for armed robbery) and three of

Allen's convictions (for armed robbery while masked, burning a building, and

assault and battery). Reference to an escape by Furtado was made in another

witness' testimony. The jury could hardly have forgotten that the case arose in a

prison setting and that virtually every one of plaintiffs' witnesses was a convict.Moreover, the excluded convictions were not particularly probative of

credibility.20 In these circumstances, we think it somewhat strained for

defendants to argue that their attack on Furtado's or Allen's credibility was

significantly impaired, and we find no error warranting a new trial. Compare

United States v. Dixon, 547 F.2d 1079, 1084 (9th Cir. 1976).21

41 Next defendants claim error in the admission of two memoranda written in

1971 by plaintiffs' witness Rosemary Adamo. Adamo was then a law studentassisting plaintiffs' counsel. In that capacity, she twice interviewed an inmate

named Thomas Murray, who told her that he had seen guards beat Furtado. Her

memoranda of their conversations were admitted into evidence after Murray



In 1967 (Murray was) indicted for conspiracy and accessory for murder of an

inmate. Never prosecuted but prison officials still use this as a threat.

Moore called Murray to his office and told him he wanted to press charges against

the officers involved, which Murray didn't believe.

He wouldn't give any names (of prison officers to the state police) though, or discuss

it, because he was afraid of reprisal. He told them he didn't want to be found dead

after "jumping off the third tier."

THE JURY INSTRUCTIONS

testified for defendants that he did not see Furtado beaten and had not spoken to

Adamo about the incident.

42Defendants do not deny that the Adamo memoranda qualified as recorded

recollections under Rule 803(5) of the Federal Rules of Evidence, or that they

were admissible to the extent that they contradicted Murray's testimony.

Nevertheless, they assert that the court should at least have excised three prejudicial portions of the memoranda that were not inconsistent with Murray's

testimony:

43

44

45

46 These portions of the memoranda were not highlighted as they were read to the

jury, and the memoranda themselves were not made exhibits. Assuming

Arguendo that certain portions of the memoranda were inadmissible hearsayand were potentially prejudicial because they put prison officials in a bad light,

defendants were adequately protected by the trial judge's contemporaneous

cautionary instructions to the jury.22

47 Finally, defendants take issue with the trial judge's refusal to allow State Police

Officer Philip Reilly to testify in rebuttal that Murray told him, two days after

the incident, that he was being pressured by several inmates to say the guards

were cruel and unreasonably abusive to Furtado. This evidence was offered prior to Adamo's testimony and excluded as premature, but, without waiving

objections to its admissibility, plaintiffs stipulated that the evidence could be

offered, without recalling Reilly, after Adamo testified. Nevertheless, defense

counsel forgot to offer it before he rested. It was within the trial judge's

discretion to deny a motion to reopen the case on the following morning on the

ground that to admit the evidence in splendid isolation would give it undue

emphasis. Ditter v. Yellow Cab Co., 221 F.2d 894, 899 (7th Cir. 1955). See

Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331, 91 S.Ct.795, 28 L.Ed.2d 77 (1971).23



By unreasonable force, I do not mean that you should draw fine, exact lines. A

prison is not a social gathering. A wise judge has put it:

"The management by a few guards of large numbers of prisoners, not usually the

most gentle or tractable of men and women, may require and justify the occasional

use of a degree of intentional force. Not every push or shove, even if it may later

seem unnecessary in the peace of a judge's chambers, violates a prisoner'sconstitutional rights. In determining whether the constitutional line has been crossed,

a court must look to such factors as the need for the application of force, the

relationship between the need and the amount of force that was used, the extent of

injury inflicted, and whether force was applied in a good faith effort to maintain or

restore discipline, or maliciously and sadistically for the very purpose of causing

harm."

It would not be practical; it would hamstring a prison guard from using force at all

when force was required if he had to fear a law suit every time. The law is not like

that. I instruct you that the plaintiffs must show you that a guard used excessive

force, excessive to the degree that a reasonable guard would realize, on the facts

known to him when he did it, that it was excessive.

48 Defendants challenge the trial court's instructions to the jury on two of the three

aspects of the case: (1) the use of excessive force, and (2) the suppression of

Sousa's mail.24 Because defendants did not object to the instructions before the

jury retired, as required by Rule 51 of the Federal Rules of Civil Procedure, we

have only to decide whether the instructions given were plainly erroneous and

necessitate reversal to prevent a clear miscarriage of justice. Morris v.

Travisono, supra, 528 F.2d at 859; Nimrod v. Sylvester, 369 F.2d 870, 873 (1stCir. 1966).25

49 On the claim of brutality, the trial judge impressed upon the jury that the issue

was whether defendants had used unreasonable or excessive force. Quoting at

length from Judge Friendly's opinion in Johnson v. Glick, 481 F.2d 1028, 1033

(2d Cir.), Cert. denied sub nom. John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462,

38 L.Ed.2d 32 (1973), he imposed a rather heavy burden on plaintiffs to

establish the force used was unreasonable:

50

51

52

53 Although the standard for determining when a guard's application of force

offends the eighth or fourteenth amendments is not easily formulated, the

charge given here is perhaps open to criticism on the ground that it did not

expressly require a finding that the force used was shocking or violative of

universal standards of decency.26 See Meredith v. State of Arizona, 523 F.2d

481, 482-84 (9th Cir. 1975); Johnson v. Glick, supra, 481 F.2d at 1033; Howell



PREJUDGMENT INTEREST AND ATTORNEY'S FEES

v. Cataldi, 464 F.2d 272, 282 (3d Cir. 1972). Nevertheless, we do not think the

charge is any wider of the mark than the one in Morris v. Travisono, supra, 528

F.2d at 858, where we declined to invoke the plain error exception to Rule 51.27

Nor are we impelled to find a clear miscarriage of justice, particularly in light

of ample evidence that Furtado suffered a cracked jaw, bled profusely, and

required hospitalization and pain medication for several days.

54 We come to a similar conclusion after examining the court's instructions on the

suppression of Sousa's mail. In essence, the court charged that Butterworth was

liable for damages if he suppressed the second letter Sousa wrote to Dr. Van

Waters and the letter Sousa wrote to Judge Wyzanski. The defendants claim the

instruction was erroneous because it deprived Butterworth of his qualified

immunity defense, by failing to take into account that the law concerning

prisoners' correspondence rights was unsettled in March, 1970, and by failing to

require a finding of malice.

55 Although we agree that Butterworth could assert qualified immunity unless he

knew or should have known he was violating Sousa's rights, Procunier v.

Navarette, 434 U.S. 555, 562, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978), and that the

rights of prisoners to send routine correspondence were unclear until 1974,

Procunier v. Martinez, 416 U.S. 396, 406-07, 94 S.Ct. 1800, 40 L.Ed.2d 224

(1974), we find no plain, reversible error in the instruction given. In the first

place, we are not convinced an instruction on qualified immunity was required.In testifying, Butterworth did not rely on this defense, but rather denied

intercepting the letters in question. Second, a strong argument can be made that

Butterworth should have known that intercepting these letters would violate

Sousa's right of access to the courts. Both letters contained requests for legal

assistance, and one was directed to a federal judge. By 1970, it was well settled

that a prisoner's right of access to the courts included the right to mail legal

petitions to court without having prison officials screen them, Ex parte Hull,

312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941), and the rights of access tolegal assistance, Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718

(1969). See Nolan v. Scafati, 430 F.2d 548, 550-51 (1st Cir. 1970) (holding,

four months after Sousa wrote his letters, that Johnson v. Avery clearly meant

an inmate had the right to write to the Civil Liberties Union for legal

assistance). Compare Procunier v. Navarette, supra, 434 U.S. at 565 n.12, 98

S.Ct. 855. Finally, because the jury expressly found that Butterworth

recommended segregation for Sousa because of his letter writing and assessed

punitive damages, it is highly unlikely that a charge requiring it to findButterworth acted maliciously would have made any difference.



The jurisdiction . . . conferred on the district courts by the provisions of this chapter

and Title 18, for the protection of all persons in the United States in their civil rights,

and for their vindication, shall be exercised and enforced in conformity with the laws

of the United States, so far as such laws are suitable to carry the same into effect; butin all cases where they are not adapted to the object, or are deficient in the

provisions necessary to furnish suitable remedies and punish offenses against law,

the common law, as modified and changed by the constitution and statutes of the

State wherein the court having jurisdiction . . . is held, so far as the same is not

inconsistent with the Constitution and laws of the United States shall . . . govern(.)

56 We now consider whether prejudgment interest was properly assessed and

attorney's fees were correctly computed. To the award of $27,500 in damages,

the trial judge added approximately $14,900 in prejudgment interest, a sizeable

amount that reflected this case's slow progress to trial. The trial judge's reason

for adding prejudgment interest is not stated in the record. From the

calculations made, however, it appears that he believed Massachusetts law

controlled this point and that the pertinent statute, Mass.Gen.Laws ch. 231, §6B, mandated prejudgment interest.28

57 We first decide whether Massachusetts law was applicable. Although state law

governs the imposition of prejudgment interest in diversity cases, Hobart v.

O'Brien, 243 F.2d 735, 745 (1st Cir. 1957), it has not been applied in cases

arising under federal law. Sanabria v. International Longshoremen's

Association Local 1575, 597 F.2d 312, 313-14 (1st Cir. 1979); Moore-

McCormack Lines, Inc. v. Amirault, 202 F.2d 893, 894-97 (1st Cir. 1953). Incivil rights cases brought under 42 U.S.C. § 1983, courts are required by 42

U.S.C. § 1988 to look first to federal law on all matters, but to turn to the law of

the forum state if federal law does not cover the issue.

58

59 42 U.S.C. § 1988. Whether state prejudgment interest law applies in this case

therefore hinges on whether federal law on the subject is viewed as "deficient."See Robertson v. Wegmann, 436 U.S. 584, 588, 98 S.Ct. 1991 (1978).

60 We rule that resort to state law on prejudgment interest was not required.

Although we have found no cases on point, several Supreme Court opinions are

instructive. On one hand, the Court has applied state survivorship law and

statutes of limitations in federal civil rights litigation. Id. at 594-95, 98 S.Ct.

1991; Johnson v. Railway Express Agency, 421 U.S. 454, 462-66, 95 S.Ct.

1716, 44 L.Ed.2d 295 (1975). On the other hand, the Court has indicated thatfederal courts should fashion appropriate rules for damages in section 1983

actions. Carey v. Piphus, 435 U.S. 247, 257-59, 98 S.Ct. 1042, 55 L.Ed.2d 252

(1978). See Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 238-40, 90 S.Ct.



400, 24 L.Ed.2d 386 (1969). We think that the issue of prejudgment interest is

closely allied with that of damages, and that a federal rule should, therefore, be

developed for an action under 42 U.S.C. § 1983. This is altogether in keeping

with the approach to prejudgment interest in Rodgers v. United States, 332 U.S.

371, 373, 68 S.Ct. 5, 7, 92 L.Ed. 3 (1947), where, in barring prejudgment

interest on penalties exacted under the Agricultural Adjustment Act, the

Supreme Court said, "in the absence of an unequivocal prohibition of (prejudgment) interest . . ., this Court has fashioned rules which granted or

denied interest on particular statutory obligations by an appraisal of the

congressional purpose in imposing them and in light of general principles

deemed relevant."

61 Declaring that a federal rule should govern prejudgment interest in civil rights

actions under 42 U.S.C. § 1983 is easier than formulating a rule. There are, of

course, three options: prejudgment interest could be (1) mandatory, (2)discretionary, or (3) barred. We find little to recommend a mandatory rule. The

injuries suffered by plaintiffs in civil rights actions are often intangible, and

prejudgment interest will not always be necessary to compensate them fully.

See Moore-McCormack Lines, Inc. v. Amirault, supra, 202 F.2d at 895.

Assuming that prejudgment interest can also legitimately have a punitive

purpose when a defendant has obstinately delayed payment to an injured party,

See Rivera v. Rederi A/B Nordstjernan, 456 F.2d 970, 976 (1st Cir.), Cert.

denied, 409 U.S. 876, 93 S.Ct. 124, 34 L.Ed.2d 128 (1972), such interest willnot be warranted in every case. By the same token, we have reservations about

an inflexible rule barring prejudgment interest in a section 1983 action. Such a

rule is arguably appropriate because section 1983 creates a species of tort

liability, and prejudgment interest on the typical unliquidated tort claim was not

recoverable at common law. Id. at 976; Moore-McCormack Lines, Inc. v.

Amirault, supra, at 897. Nevertheless, the traditional common law view has

been criticized, See id. at 898; D. Dobbs, The Law of Remedies § 3.5, at 173-74

(1st ed. 1973), and common law tort rules, although a useful starting point for fashioning remedies for section 1983 violations, are not binding. Carey v.

Piphus, supra, 435 U.S. at 258-59, 98 S.Ct. 1042.

62 We need not decide between a rule making prejudgment interest discretionary

and one barring it altogether. Assuming Arguendo that prejudgment interest

was discretionary, federal law dictated that the jury should decide whether to

assess it. Robinson v. Pocahontas, Inc., 477 F.2d 1048, 1053 (1st Cir. 1973);

Newburgh Land & Dock Co. v. Texas Co., 227 F.2d 732, 735 (2d Cir. 1955);Parisi v. Lady in Blue, Inc., 433 F.Supp. 681, 682-83 (D.Mass.1977). But the

question of prejudgment interest was not submitted to the jury, nor did plaintiffs

ask that the jury be instructed on it. Consequently, the award of prejudgment



interest must be stricken. Robinson v. Pocahontas, Inc., supra, at 1053.29

63 There remains the question of attorney's fees, which were awarded to plaintiffs'

two lawyers under 42 U.S.C. § 1988. The trial judge awarded $13,750, a figure

arrived at by halving plaintiff's dollar recovery. In settling upon this novel

formula, the court took the position that it would be unfair to make defendants

pay more than plaintiffs would have paid counsel had they been able to retaincounsel on a contingency basis. Aware that this approach might be rejected on

appeal, the court made an alternative finding that "counsel legitimately put

$20,000 worth of work into the case, timewise."

64 We are constrained to remand. Although the half the dollar recovery formula

has beguiling simplicity and resulted in a substantial award here, we cannot

accept it. Quite apart from the fact that the formula would work obvious

injustice in cases where damages were nominal or only injunctive relief wassought, or in cases where recovery was large and out of proportion to the work

done, we eschewed such simple formulae in King v. Greenblatt, 560 F.2d 1024

(1st Cir. 1977), Cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161

(1978). There, we held that in awarding fees the court must "adhere carefully"

to the twelve criteria that were set forth in Johnson v. Georgia Highway

Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), and approved by Congress.

Because the fifty per cent of recovery formula ignores time and labor spent, as

well as other factors, it cannot stand.

65 Nor are we sure that the alternative award of $20,000 reflects consideration of

each of the pertinent criteria. True, plaintiffs' counsel directed the court's

attention to King v. Greenblatt, supra, and provided relevant documentation,

and the court touched upon some of the proper criteria in its opinion (for

example, stating that the representation given was highly qualified). But,

because the trial judge found that counsel put $20,000 worth of work into the

case "timewise," we are left to wonder whether this figure only reflects thehours spent.

66 Accordingly, we remand the case for further consideration of the attorney's

fees. Upon remand, the district court should also determine, after appropriate

documentation is submitted, what attorney's fees are due plaintiffs' counsel for

the appellate work that has now been put into the case.

67 To sum up, the portion of the judgment imposing prejudgment interest is

stricken and the portion of the judgment relating to attorney's fees is vacated

and remanded for further consideration. In all other respects, the judgment of



Of the U.S. Court of Appeals for the First Circuit, sitting by designation

Of the District of Rhode Island, sitting by designation

Both men were found by a disciplinary board to have violated prison rules, but

the Board's action in Sousa's case came one day After Moore had

recommended Sousa's transfer

Sousa, but not Furtado, admitted drinking home brew on the evening in

question. Both men arguably refused to obey certain orders to move; there wasevidence they protested because Superintendent Moore had promised an end to

"shakedowns" of cells after 10:00 p. m

The complaint contained specific allegations that some of the defendants had

made false reports that the plaintiffs had created a disturbance and that, as a

result, Sousa and Furtado were transferred to DSU. There were further

allegations that the "acts of defendants in causing the plaintiffs to be transferred

to the departmental segregation units . . . were arbitrary and capricious,deprived plaintiffs of their rights to due process of law . . . (and) to be free of

cruel and unusual punishment . . . as guaranteed by the Eighth and Fourteenth

Amendments . . . ."

The complaint stated that in segregation the plaintiffs were held in virtual

twenty-four hour lockup, were not permitted to have personal belongings, to

watch television, or to listen to the radio, were denied access to rehabilitative

programs, and had their visits and correspondence severely curtailed. The

following description of conditions at DSU Bridgewater was given:

DSU Bridgewater . . . was located in an ancient and dilapidated building. There

was no plumbing. Plaintiff (Sousa) had to use a dry pot which was emptied only

once per day. His cell was infested with cockroaches. Above the segregation

unit were held violent uncontrollable patients from the hospital portion of

M.C.I. Bridgewater. These patients disturbed DSU inmates by making constant

noise and by urinating on their floor. In spite of the above unhygienic

conditions, DSU Bridgewater inmates were permitted to wash in a sink onlyonce per day and shave and shower twice per week.

Defendants' trial counsel did object strenuously to the admission of evidence of

the district court is upheld.

68 SO ORDERED.

*

**

1

2

3

4

5



the conditions at the DSU, but he did so on the ground that the named

defendants could not be held responsible for the transfers (which were

ultimately ordered by the Commissioner of Correction) or for the conditions in

the DSU. When he moved for a directed verdict for Butterworth, it was on

similar grounds. No objections were taken to the judge's charge or to

interrogatories encompassing plaintiffs' theory of recovery. Nowhere in the

record can we find any objections to the trial judge that plaintiffs' theory of recovery for segregation was, as appellate counsel now characterizes it,

"bogus." To the contrary, in defendants' requests for jury instructions, they

appear to concede liability if they "acted intentionally or maliciously or in bad

faith to segregate the plaintiffs from the general population."

Although defendants seize upon language in Meachum v. Fano, 427 U.S. 215,

228, 96 S.Ct. 2532, 2540, 49 L.Ed.2d 451 (1976), to the effect that "prison

officials have discretion to transfer (prisoners) for whatever reason or for noreason at all," we understand this statement to describe the applicable

Massachusetts law in that case and not to constitute a pronouncement that a

transfer can never violate the Constitution

Montanye had pursued this claim below and the Second Circuit found that he

had standing to raise a first amendment challenge to his transfer. Haymes v.

Montanye, 547 F.2d 188, 189-90 (2d Cir. 1976), Cert. denied, 431 U.S. 967, 97

S.Ct. 2925, 53 L.Ed.2d 1063 (1977). Compare Sisbarro v. Warden,

Massachusetts State Penitentiary, 592 F.2d 1, 4 (lst Cir. 1979) (no firstamendment claim articulated)

Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565 (1978), did involve punitive

isolation, but there the Supreme Court upheld a thirty day limitation on such

confinement in an Arkansas prison on the theory that conditions were

barbarous rather than that the punishment was grossly disproportionate. Id. at

685-88, 98 S.Ct. 2565

See n. 5, Supra

Fitzpatrick had the statutory authority to transfer. Mass.Gen.Laws ch. 127, § 39

Defendants complain that the jury never actually found that defendants' reports

and recommendations actually caused the transfers. It is true that the

interrogatories only called for the jury to determine whether the defendants

intended or expected that segregated confinement would result. We do not think

this entitles defendants to relief, however, because they never objected to the

interrogatories or pointed out any deficiencies in them before they were

submitted to the jury. In addition, we think it is highly likely that the jury

believed defendants' actions caused the transfers, especially in light of evidence

6

7

8

9

10

11



that Butterworth specifically relied upon reports by Saulnier and Scholes in

making his recommendation to Moore (who had only been on the job for two

weeks) and that Moore mentioned the Saulnier and Scholes reports in his letters

to Fitzpatrick, and in light of the trial judge's instruction that the plaintiffs had

the burden of showing that the defendants "fooled" Moore. Although

defendants claim at one point in their brief that the trial judge prevented them

from proving that Moore's independent judgment regarding the transfers brokethe chain of causation, we do not read the record this way

The evidence indicated that, after seeing Sousa and Butterworth, Cross called

State Police Officer Reilly and then did nothing other than submitting his

affidavit

The legislative history of Rules 804(b)(5) and 803(24) can be summarized as

follows. The House of Representatives deleted the forerunners of these residual

hearsay provisions "as injecting too much uncertainty into the law of evidence

and impairing the ability of practitioners to prepare for trial." H.R.Rep.No.650,

93d Cong., 1st Sess. 5-6 (1973), Reprinted in (1974) U.S.Code Cong. &

Admin.News, p. 7079. The Senate reinstated the provisions in a narrower form,

believing that "exceptional circumstances" would on rare occasions justify the

admission of hearsay not covered by other exceptions, and stating its

expectation that "the court will give the opposing party a full and adequate

opportunity to contest the admissibility of any statement sought to be

introduced . . . ." S.Rep.No.1277, 93d Cong., 2d Sess. 18-20, Reprinted in(1974) U.S.Code Cong. & Admin.News, p. 7051, 7065-66. The Conference

Committee retained the provisions but added the pretrial notice requirement,

without elaborating on the reason for the requirement. Joint Explanatory

Statement of the Committee on Conference, H.R.Rep.No.1597, 93d Cong., 2d

Sess. 13, Reprinted in (1974) U.S.Code Cong. & Admin.News, p. 7105-06.

During the debates on the floor, two representatives who had participated in the

conference commented upon the pretrial notice provision. Representative

Hungate said of the notice requirement:

We met with opposition on that. There were amendments offered that would let

them do this right on into trial. But we thought the requirement should stop

prior to trial and they would have to give notice before the trial. That is how we

sought to protect them.

Cong.Rec. H12,256 (daily ed. Dec. 18, 1974). Representative Dennis said that,

although he disliked the residual hearsay provisions, he thought that theinsertion of a notice requirement so that counsel could get ready for such

evidence was an adequate compromise. 120 Cong.Rec. H12,256-57 (daily ed.

December 18, 1974)

12

13

120



Rule 102 provides:

These rules shall be construed to secure fairness in administration, elimination

of unjustifiable expense and delay, and the promotion of growth and

development of the law of evidence to the end that truth may be ascertained and

proceedings justly determined.

Although Medico and Iaconetti are Second Circuit cases, neither is mentioned

in Oates or Ruffin

Conceivably, defense counsel had not learned that Cross was dead and expected

that his testimony would be offered rather than his affidavit, but we are not

convinced this is material

Indeed, we think any moderately prepared defense counsel in this case would

have noticed Cross' affidavit and taken these steps

We also have considered that the affidavit was admissible in any event to

impeach Butterworth

Rule 103(a) provides:

Error may not be predicated upon a ruling which admits or excludes evidence

unless a substantial right of the party is affected(.)

Defendants contend that Furtado's convictions for contributing to the

delinquency of a minor, carnal abuse of a female child, escape, and larceny of a

motor vehicle suggested "devious or deceitful conduct" on his part. Even if this

can fairly be said of the latter two convictions, a point of which we are not

persuaded, the escape was mentioned anyway and, as we read the record, the

trial judge never made a definitive ruling on the escape and larceny of a motor

vehicle conviction

We need not decide whether defense counsel failed to preserve objections to the

exclusion of the prior convictions. It would have been better had counsel made

it clear, after the Voir dire on this point, that he was pressing an objection, as

was required in Subzec v. Curtis, 483 F.2d 263, 266 (1st Cir. 1973)

The judge, in part, told the jury:

The only purpose of hearing what this young lady will tell you that Mr. Murraytold her is for you to decide whether or not Mr. Murray was telling you the

truth when he testified. If you find as a result of what she tells you that he was

not telling the truth, then all of those, as to those particular matters, then all of

14

15

16

17

18

19

20

21

22



those things go out of the case so far as Mr. Murray is concerned. And your

mind remains a blank just as if he had never testified. You cannot use this

contradiction, what the law calls impeachment, affirmatively in the case

anymore. It's only with relation to whether or not you believe Mr. Murray.

The instructions make it unnecessary for us to discuss plaintiffs' contention that

defendants failed to preserve this evidentiary point for appeal by specifying or moving to strike the offending portions of the memoranda.

As the plaintiffs point out, the fact that Murray had told the state police he was

under pressure from other inmates was mentioned in the Adamo memoranda

He said the statements in the police report about the fact he saw the officers use

reasonable force to restrain and that he was being pressured by other inmates

are false.

Defendants make no complaints about the charge on the transfers to

segregation

Krock v. Electric Motor and Repair Co., 327 F.2d 213 (1st Cir.), Cert. denied,

377 U.S. 934, 84 S.Ct. 1338, 12 L.Ed.2d 298 (1964), relied on by defendants, is

not to the contrary. That case did not involve an attack on the judge's charge on

appeal

To the contrary, the court indicated that punitive damages could be imposed if

the jury found the conduct shocking or outrageous; the jury awarded no

punitive damages for the beatings

In Morris, an instruction that the jury could impose liability if it found that

prison guards used tear gas against nonthreatening prisoners "for the mere

purpose of punishing them" was said to lower the threshold of cruel and

unusual punishment

Chapter 231, § 6B provides:

In any action in which a verdict is rendered or a finding made or an order for

judgment made for pecuniary damages for personal injuries to the plaintiff or

for consequential damages, or for damage to property, there shall be added . . .

to the amount of damages interest thereon from the date of commencement of

the action.

Effective August 14, 1974, the rate of prejudgment interest was increased from

6% To 8%. 1974 Mass.Acts, ch. 224, § 1. The trial judge accordingly provided

for interest at 6% Prior to August 14, 1974, and 8% Thereafter.

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We do not think Rule 49(a) of the Federal Rules of Civil Procedure is to the

contrary. That rule provides that, when a jury is asked to return a special

verdict, the court may decide any issue of fact not presented to the jury

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John Furtado v. Harold Bishop, John Furtado v. Harold Bishop, 604 F.2d 80, 1st Cir. (1979)

Documents

Transcript of John Furtado v. Harold Bishop, John Furtado v. Harold Bishop, 604 F.2d 80, 1st Cir. (1979)